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May 18, 2009

"Pot Activist Sentenced To 10 Years For Growing 1,000 Plants"

The title of this post is the title of this interesting article reporting on a federal sentencing from California. Here are some more details:

A federal judge in San Francisco Monday sentenced a Lake County man to 10 years in prison for growing more than 1,000 marijuana plants, saying the marijuana activist appeared to "want to be a martyr for the cause."

The sentence for Charles "Eddy" Lepp, 56, was the mandatory minimum under federal law for growing more than 1,000 plants. U.S. District Judge Marilyn Patel said Lepp didn't qualify for a so-called "safety valve" exception with a lesser sentence because he testified at his trial last fall that he was a proud leader of others who grew marijuana on his land.

Patel told Lepp, "I think Mr. Lepp is very proud of what he's been doing. The problem is that now unfortunately, Mr. Lepp, it's caught up with you." "Maybe you want to be martyr for the cause," Patel said. "That will be your lot."

Patel said she thought the length of the sentence was excessive, but said it would be up to Congress to change the law.

Lepp, a disabled Vietnam veteran who says he is now a Rastafarian minister, was convicted in Patel's court in September of conspiring to grow and growing more than 1,000 plants on 23 acres he owns adjacent to state Highway 20 in Upper Lake.

Lepp had contended the marijuana was grown for medical use under California's compassionate use law and for spiritual practice in his Rastafarian religion. But he was not allowed to make either argument at his trial. U.S. drug laws don't allow state medical marijuana laws to be used as a defense in federal prosecutions.

Lepp said at the sentencing, "I've done all I can to comply with the laws and rules of the state in which I reside." He said he informed local authorities in 2004 that his land would be used to enable patients who didn't own land to grow marijuana for medical purposes."

Prosecutor David Hall told the judge, "I've never seen a man work harder to get time in prison than Mr. Lepp has." Lepp's attorney, Michael Hinckley, said outside of court that the sentence was "tragic" and said he will appeal.

Comments

This line was quite interesting: "Patel told Lepp, 'I think Mr. Lepp is very proud of what he's been doing. The problem is that now unfortunately, Mr. Lepp, it's caught up with you.' 'Maybe you want to be martyr for the cause,' Patel said. 'That will be your lot.'"

If Marilyb Patel, of all people, had that to say to the defendant, he must really be a piece of work. Judge Patel is, after all, the San Fransisco version of Nancy Gertner.

When a fellow does everything he can to flagrantly break the law, and even more flagrantly to ADVERTISE that he's breaking it, he is asking for it.

Judge Patel got it just right: If you think the law is wrong, you are free to work to try to change it. You are not free to be a state unto yourself, and do whatever you want because YOU think it's OK.

Posted by: Bill Otis | May 18, 2009 5:27:08 PM

Bill: I wish pro-life protesters would accept your message (that if you think the law is wrong, you are free to work to change it, but you are not free to break the law just because YOU think it's OK to do so). They often flagrantly violate laws against trespassing, etc.

Posted by: anon | May 18, 2009 5:48:28 PM

You can't put all marijuana growers in jail! As I type someone just took his place. The tax payer will foot the bill for the next ten years. Lets see about 30k a year to house this person in prison times 10 years= 300,000. Glad to see our tax dollars being put to good use!!

Posted by: anon | May 18, 2009 6:39:22 PM

The man should be pardoned.

Posted by: anon | May 18, 2009 6:55:39 PM

Well, anon, the likelihood of that is pretty slim. If any California residents are outraged by this, then write Congresscritters. They'll ask DOJ about the prosecution and report back.

Posted by: federalist | May 18, 2009 6:58:02 PM

We can't legalize marijuana to many lawyers would be affected. We can't have that!

Posted by: free weed | May 18, 2009 7:07:58 PM

anon | May 18, 2009 5:48:28 PM --

I agree. If we are to have the rule of law, the sincerity of those who intentionally break it does not excuse their behavior.

Posted by: Bill Otis | May 18, 2009 7:21:51 PM

Bill. The only thing the rule of law means is that it's the law of rulers.

It is devoid of any objective content.

Posted by: Daniel | May 18, 2009 7:29:07 PM

anon | May 18, 2009 6:55:39 PM --

"The man should be pardoned."

Why?

To pardon this guy would be for the executive to unilaterally repeal the drug laws. But repeal is a legislative function, not an executive one. If you want an Imperial Presidency, this is the path to it.

This defendant's case is exceptional to be sure, but not in a way that should invite a pardon. His attitude is not one of contrition but of defiance. He is entitled to his attitude, sure. What he is not entitled to is to have the President accommodate it.

Suppose a Republican President pardoned a big-time and unrepentant environmental polluter, citing the criminal's sincere belief that environmental laws are all wrong. Would that be OK?

Of course it wouldn't. If environmental laws are wrong, the authority to strip them of any effect lies with Congress, not the President. Indeed, it is difficult to see what would remain of Congress's authority to adopt criminal statutes if the President could effectively nullify them by pardoning the worst violators.

Posted by: Bill Otis | May 18, 2009 7:35:25 PM

Me on jury = Jury nullification! The war on marijuana is a complete failure. Billions are being wasted putting marijuana offenders in jail. Stop the madness! And yes I write my law makers expressing this!

Posted by: Anon | May 18, 2009 7:37:30 PM

"The only thing the rule of law means is that it's the law of rulers."

Dumbest comment ever, on several levels.

Posted by: anonymous | May 18, 2009 8:46:58 PM

This scheme ends the self-defeating prohibition without increasing the giant potential for health damage from legalization.

It's time to legalize marijuana. No doubt it will happen in the near future.

The President can pardon anyone any time for any reason, and it is just fine. He does not need permission.

Posted by: beth | May 18, 2009 9:51:20 PM

beth --

"It's time to legalize marijuana. No doubt it will happen in the near future."

Did Obama run on a legalize pot platform? I must have missed that. Still, to be as breezily confident as you are, perhaps I should ask to borrow your crystal ball.

"The President can pardon anyone any time for any reason, and it is just fine. He does not need permission."

As a legal matter, this is correct. It is nonetheless the case that for the President to pardon all dope offenders would be an effective abolition of Congress's right to criminalize dope.

I asked this earlier: "Suppose a Republican President pardoned a big-time and unrepentant environmental polluter, citing the criminal's sincere belief that environmental laws are all wrong. Would that be OK?"

Would it?

This is NOT a question about whether it would be legal. The death penalty is legal, but (according to what you have said before) not OK.

How about if he pardoned everyone federally convicted of a hate crime, on his theory (shared by quite a few) that hate crimes legislation is all wrong.

Would that be OK?

Personally, I hope Obama goes right ahead and issues willy-nilly pardons to druggies. Since I'm not looking forward to paying off his titanic borrowing binge, or paying for his bailouts, I can only hope he hands the Republicans an issue like that.

Posted by: Bill Otis | May 18, 2009 11:46:16 PM

beth --

Just a quick follow-up on the question whether dope is going to be legalized "in the near future."

I do not have access to a crystal ball. I do, however, have access to something called pollingreport.com.

This is the site: http://www.pollingreport.com/drugs.htm

I just took a look. Here are the results of the three most recent polls on this question appearing on its site.

The average of the two polls conducted in 2009 is 39% favoring legalization and 52% opposing it. In an election, that would qualify as a landslide.

That's my evidence. What's your evidence?

Posted by: Bill Otis | May 19, 2009 12:33:49 AM

Marihuana is often bandied about as a harmless substance. But I'd bet the thousands that have died on the southern border might take exception to that premise. Everynone is equally sure that legalized dope, or even decriminalized dope will result in an end to the trade? Oh really? You expect Kroger to carry dope on the same shelf with Marlboros? Get real, the trade will remain. Further, how can you justify legalized dope and keeping crack illegal? Sounds racist to me.

Posted by: Howard Marks | May 19, 2009 12:36:23 AM

It looks like he was sentenced for contempt of court, or of prosecutor, or of someone. Is that what the jury found?

Posted by: George | May 19, 2009 3:46:52 AM

George --

What's the evidence that he was sentenced for contempt of court rather than for the drug offense of which he was convicted?

In fact, he got the MINIMUM permissible under the atatute for an offense involving that quantity.

When did getting the minimum provided for the offense of conviction become an exercise in judicial bad temper? Given the defendant's attitude, and given the broad discretion allowed sentencing courts under Booker, Gall and Kimbrough, a better case could be made that he got a break by avoiding having a bit more tacked on for his defiant attitude.

Posted by: Bill Otis | May 19, 2009 7:56:05 AM

Bill, I think you've put me in a box where I don't live. If the President pardoned everyone convicted of hate crimes or environmental pollution I would call that a start.

Polls don't constitute evidence. Legalization is in the hands of Congress, not the President.

Posted by: beth | May 19, 2009 9:18:07 AM

Bill Otis: "Suppose a Republican President pardoned a big-time and unrepentant environmental polluter, citing the criminal's sincere belief that environmental laws are all wrong. Would that be OK?"

JK: Not with me. Polluters harm innocent citizens. Pot growers merely snub reactionary statutes and deal exclusively with citizens who want (need?) their services. No innocent victims in what the growers do.

Jury nulification in cases like this (non-violent drug crimes) would be laudible.

And if Congress gets its feelings hurt because an empathetic president or willful juries or activist judges swerve to avoid tyrannical outcomes it's OK with me.

Besides, congress members who create and foster draconian laws (the kinds that make judges wince when they enforce them) still win plenty of pander-points from authoritarian fringe groups that vote in disproportionately significant numbers in primary elections.

Posted by: John K | May 19, 2009 10:11:29 AM

Bill Otis: "Personally, I hope Obama goes right ahead and issues willy-nilly pardons to druggies... I can only hope he hands the Republicans an issue like that."

JK: This is exactly my point, Bill: A small, zealous army of Bill Otises (possibly enough to matter in primary elections) stands ready to pounce on any politician who sets about the task of ending the failed drug war.

Posted by: John K | May 19, 2009 10:30:04 AM

beth --

"Bill, I think you've put me in a box where I don't live."

I was under the impression you opposed the death penalty. If I'm mistaken about that, I apologize.

"If the President pardoned everyone convicted of hate crimes or environmental pollution I would call that a start."

I'd call it a start on disaster. The pardon power has never been understood to be intended to wipe away a whole category of offenses. The historical pedigree of its use is to correct injustice in particular, and particularly sympathetic, cases.

"Polls don't constitute evidence."

Sure they do -- they constitute evidence of public opinion, and public opinion will be crucial in the decsion by either of the political branches to support legalization.

"Legalization is in the hands of Congress, not the President."

Absolutely correct, which is why de facto legalization through categorical pardons would be a gross misuse of the pardon power.

Posted by: Bill Otis | May 19, 2009 10:56:45 AM

We just disagree. I'm a bit more conservative. Too much government is a problem.

Posted by: beth | May 19, 2009 11:26:49 AM

JK --

1. The most prominent use of jury nullification was the nullification by Deep South juries in the Jim Crow days of any charge in which there was a white defendant and a black victim. This was up to and including murder.

The whites who sat on these juries were as thoroughly convinced as you are that they were right, and that laws that treated black people as human beings were the product of carpetbagger "tryanny." They "knew" better, just as you "know" better about drugs. So they flouted the law and acquitted obviously guilty, and quite dangerous, goons.

What NEUTRAL principle distinguishes what those juries did and what you propose juries do now when they disagree with the law?

2. As is typical with legalizers, you trot out the weary phrase "failed drug war" without producing any evidence of what the incidence of harmful drug consumption would be if we were NOT engaged in that war.

Of course it's true that there is still a lot of illegal drug use. There is also a lot of murder -- thousands every year. Should we also end the "war on murder" because of this?

In answering that question, at least two things need to be considered. One is how much murder there would be if we did NOT diligently seek to capture and punish killers. The second is that, understanding that it will never be the case that all murder will be done away with, is the reduction in social harm accomplished by deterrence and incapacitation worth the cost?

Even most legalizers admit -- grudginnly -- that drugs are unhealthy (at best) and that, once the legal barrier to their acquisition and use has been removed, they are going to get used more often, increasing the amount of social damage they cause. But I do not see in your posts any acknowledgement of this, and still less any fair effort (or any effort at all) to assess the increased social damage that will come with more drug use or to put a cost on it.

The only thing I see is that those who oppose you, from Barack Obama (who is against legalization) to the AMA (ditto) to the late Richard Nixon are all in the same boat -- either demagogues or those who cower before demagogues.

With that and a blinkered form of libertarianism as the principal arguments on your side, it's no wonder that polling is uniformly against the legalization position.

Posted by: Bill Otis | May 19, 2009 11:30:40 AM

Don't bet too much on the "jury nullification" horse in the short run. Voire dire weeds out the marijuana reformers. As for removing legal barriers; so marijuana will be in the same boat as alcohol. Next!

There is little cause for concern for the job security of prosecutors; just as the police will merely refocus their energies on other crimes, so too will prosecutors. There's always more crime to be detected and prosecuted; as a matter of fact, I'll wager that somebody's not wearing a seatbelt as we speak.

Posted by: Mark#1 | May 19, 2009 11:56:14 AM

As for polls regarding legalization: 1) we don't know the questions asked; 2) we don't know what substance was at issue in the polls; and 3) the results aren't broken down by age cohort.

Anyone from the "reefer madness" era is reflexively anti-marijuana decriminalization; but that age group is shrinking due to attrition. Persons under 30--who are also underrepresented in polls since they are in the vanguard of the modern practice to not have a landline phone--are likely overwhelmingly in favor of decriminalization. But, of course, we'll need a poll to tell us that.

Posted by: Mark#1 | May 19, 2009 12:04:27 PM

With regard to the martyr aspect, Gandhi noted that one had a duty to violate an unjust law. But he also noted that, since it was still a law, one's protest also included the obligation to serve whatever sentence was imposed. That doesn't mean that the sentence is right (or just), only a recognition that it is legal. In the same way, the will of the majority does not make it just, it only makes it legal. We are hard-pressed to justify the hypocrisy in making marijuana illegal while allowing the sale of alcohol which has demonstrably created more misery than marijuana.

Posted by: Sumter L. Camp | May 19, 2009 12:17:13 PM

Mark#1 --

I wouldn't worry about the job security of defense counsel either. As a matter of fact, I'll wager that somebody's raping a 10 year-old as we speak.

Not that anyone should be concerned about this. Boys will be boys! And it wasn't the rapist's fault, dontcha know. It never is. It's that he was forced to eat too many of those darn, sugar-laden Twinkies.

Posted by: Bill Otis | May 19, 2009 12:58:23 PM

Bill,

I always enjoy reading your posts and more often than not find myself in agreement but I have a question or two for you that I have not yet seen you address. If I've missed it, I apologize. In other threads, you've pointed out that the [largely libertarian] arguments for the legalization of marijuana are in many respects identical to the arguments for the legalization of any other drug. In a general sense, I think this is correct, especially insofar as any such argument is purely libertarian.

However, an argument can be made that, applying the same principles of individual choice regardless of consequences to that individual while also taking into account the larger, societal side effects of drug use, there is a tipping point on which to allow *these* substances without allowing *those*.

For example, alcohol is legal even though it contributes to all sorts of attendant individual and social problems. Perhaps it is cultural, yet its legality perseveres. Of course, any honest proponent of marijuana legalization will admit that there are health and safety issues involved with marijuana, but there is considerable evidence that these issues are not as serious as those surrounding alcohol. I would exempt from this most violence associated with trafficking that is not imputed to the trafficking itself, i.e., any violence associated with trafficking that would disappear should the substance be legalized or decriminalized. I don't think it's asking for much of a concession from you to admit that but for its illegal status, trafficking violence would decrease. Similarly, heroin, cocaine, meth, and other more serious drugs all come with more serious problems, higher crime rates related to usage itself, etc., but none of which are necessarily equivalent.

My question for you has two parts: (1) Even though the theoretical arguments for legalization are the same, will you admit that the applicable weight of the argument will vary based on the substance? For not all drugs are created equally with the same level of harm or danger associated with base usage. And therefore, can rational people not draw a line and allow substances on one side of the line but not the other based on the respective tradeoffs? and (2) Why do you not apply your same arguments to the continued acceptance of the legalization of alcohol? Maybe you do, just not in the confines of these threads since they're typically concerned with the legalization or decriminalization of drugs, but I've not seen you advocate for the prohibition of alcohol and it seems to me to be the logical follow through on your position.

I think you often do a marvelous job of pointing out the double standards of the left on many of these criminal justice issues but there would seem to exist one of your own based on what I take to be your argument against marijuana legalization or decriminalization vis a vis alcohol. Is your line drawn between alcohol and marijuana? If so, is not this line arbitrary? If not, why would a line moved a tick to one side and thus allowing for marijuana usage not be similarly justifiable without allowing for all drugs to be legalized or decriminalized?

Posted by: Ben | May 19, 2009 1:30:39 PM

Bill asks: "When did getting the minimum provided for the offense of conviction become an exercise in judicial bad temper?"

JK: I've read any number of articles quoting judges who regretted imposing MM sentences they considered overly harsh.

The problem, in my view, is that those who set punishments in sentencing guidelines and MMs apparently overindulged their "get tough" sensibilities.

Bill asks: "What NEUTRAL principle distinguishes what (southern, Jim Crow era) juries did and what you propose juries (in non-violent drug cases) do now when they disagree with the law?"

Bill writes: "With (JK's) blinkered form of libertarianism as the principal arguments on your side, it's no wonder that polling is uniformly against the legalization position."

JK: The polling could just as easily reflect the fact grandstanding lawmakers and law enforcement officials have hogged the bullhorn in the issue for four decades.

The polling could reflect the relative disparity of high-profile advocates capable of bringing the opposing argument to equally large numbers of citizens.

The one constant in the 40-year war has been newspaper reporters' apparent willingness to print virtually verbatim virtually everything drug cops and prosecutors tell them. And I acknowledge this as a former newspaper editor.

Finally, Bill, I do acknowledge mj probably isn't healthy. In fact for me it would clearly be dangerous (asthema).

I also acknowledge decriminalizing pot would probably increase its use and therefore cause more social harm.

Yet all those negative aspects apply to a number of legal commodities and services: Big Macs, cigarettes, booze, tanning beds.

Posted by: John K | May 19, 2009 4:13:08 PM

Bill asks: "When did getting the minimum provided for the offense of conviction become an exercise in judicial bad temper?"

JK: I've read any number of articles quoting judges who regretted imposing MM sentences they considered overly harsh.

The problem, in my view, is that those who set punishments in sentencing guidelines and MMs apparently overindulged their "get tough" sensibilities.

Bill asks: "What NEUTRAL principle distinguishes what (southern, Jim Crow era) juries did and what you propose juries (in non-violent drug cases) do now when they disagree with the law?"

Bill writes: "With (JK's) blinkered form of libertarianism as the principal arguments on your side, it's no wonder that polling is uniformly against the legalization position."

JK: The polling could just as easily reflect the fact grandstanding lawmakers and law enforcement officials have hogged the bullhorn in the issue for four decades.

The polling could reflect the relative disparity of high-profile advocates capable of bringing the opposing argument to equally large numbers of citizens.

The one constant in the 40-year war has been newspaper reporters' apparent willingness to print virtually verbatim virtually everything drug cops and prosecutors tell them. And I acknowledge this as a former newspaper editor.

Finally, Bill, I do acknowledge mj probably isn't healthy. In fact for me it would clearly be dangerous (asthma).

I also acknowledge decriminalizing pot would probably increase its use and therefore cause more social harm.

Yet all those negative aspects apply to a number of legal commodities and services: Big Macs, cigarettes, booze, tanning beds.

Posted by: John K | May 19, 2009 4:35:04 PM

Bill one of the largest states ( California) favors legalization of marijuana. I agree with Jury nullification. Bill do you think the drug war has been sucessful? How much more must we spend on this war before someone waves the white flag?

Posted by: Anon | May 19, 2009 6:36:27 PM

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